MGP X Properties LLC v. City of Sherwood

In arguing that a decision is a final land use decision that LUBA has jurisdiction to review, the moving party has the ultimate burden of showing that none of the “ministerial” exceptions apply under ORS 197.015(10)(b).

Petitioner appealed (1) a comment letter from the city planning manager to the county regarding the Tualatin-Sherwood Road Widening Project, and (2) the city’s subsequent decision denying a local appeal of the comment letter.

County staff incorporated the city planning manager’s comments into the staff report presented to the county hearings officer. The petitioner argued that the letter was subject to the right of local appeal under the city code. The city attorney rejected the appeal on the ground that the comment letter was not an appealable decision.

The city asserted that the comment letter was not a final decision that is subject to LUBA review as defined in ORS 197.015(10)(a), even though the letter concerned the application of the city’s comprehensive plan and land use regulations. LUBA agreed with the city that the comment letter was not a final decision and dismissed LUBA No. 2017-074.

The city replied to petitioner’s second assignment of error (rejection of the local appeal), arguing that even though the letter applied the local land use regulations, the letter fell within the “ministerial” exception to LUBA’s jurisdiction. ORS 197.015(10)(b)(A) defines the “ministerial” exception and states that a decision that is “made under land use standards that do not require interpretation or the exercise of policy or legal judgment,” is excluded from LUBA’s jurisdiction. The petitioner argued that the exception did not apply because the code provision is ambiguous and requires interpretation. LUBA determined that the denial was made under standards that do not require interpretation, and the petitioner failed to meet its ultimate burden of showing that the challenged decision is not subject to any of the exclusions under ORS 197.015(10)(b). LUBA granted the petitioner’s motion to transfer to circuit court. LUBA transferred LUBA No. 2016-081 to Washington County Circuit Court. DISMISSED and TRANSFERRED.